EXHIBIT 10.1
[LOGO]
IHS OF VIRGINIA, INC.
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Software License and Support Agreement
Between __________________ (Customer) And IHS of Virginia, Inc. (IHS)
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
1.1 CONCURRENT USER. "Concurrent User" for purposes of licensing Software shall
mean the number of logons to the System at one time on any one processor, group
of processors acting as one or multiple processors controlled by a single
client.
1.2 DOCUMENTATION. "Documentation" shall mean the manuals regarding the
functional and technical capabilities, operation, installation and use of the
Software.
1.4 HARDWARE. "Hardware" shall mean the computer hardware products including,
but not limited to processors, operating Software, system disks, terminals,
memory, printers and modems that IHS recommends or supplies for use with the
Software.
1.5 SOFTWARE. "Software" shall mean computer readable media provided by IHS and
the computer software licensed by IHS and its suppliers contained therein as
well as documentation supplied by IHS. The expression "Software" covers the
initial configuration as well as the new releases supplied under this Agreement.
1.6 RELEASE. "Release" shall mean a set of computer programs and associated
documentation which modifies, refines, or enhances the Software and that which
IHS does not separately price or market.
2. LICENSE GRANT
IHS hereby grants to Customer, and Customer accepts, a non-exclusive license to
use the "DataQual" Software Media and the computer software contained therein,
as set forth in schedules attached hereto, in object-code-only form ("the
Software") and the accompanying Manuals, only as authorized in this Agreement.
The Software may be used for the term of this Agreement only at the Premises and
only on the Designated Computer (which computer must be owned, leased, or
otherwise controlled by Customer) or, in the event of the inoperability of that
computer, on a backup computer selected by Customer. Use in a Local Area Network
is authorized, however, additional user fees may be due per Terms and Conditions
contained in schedules attached. Customer agrees to not assign, sublicense,
transfer, pledge, lease, rent, or share Customer's rights under this Agreement.
Customer agrees not to exceed licensed user limits. Upon discovery of
unauthorized usage in excess of licensed user limits, Customer agrees to
immediately notify IHS of such usage and immediately provide remedies acceptable
to IHS which may include ceasing such usage, purchasing additional user
licenses, and indemnifying IHS for charges associated with use of the Software
in excess of licensed limits.
Upon loading the Software into the Designated Computer, Customer may retain the
Software Media for backup purposes. In addition, Customer may make one copy of
the Software on a second set of media for the purpose of backup in the event
that the Software Media are damaged or destroyed. Customer may make one copy of
the Manuals for backup purposes. Any such copies of the Software or the Manuals
shall include IHS' and/or its supplier's copyright and other proprietary
notices. Except as authorized under this paragraph, no copies of the Software or
any portions thereof may be made by Customer or any person under Customer's
authority or control. Upon termination of this Agreement, Customer agrees to
cease using the Software, destroy all copies, and certify destruction or return
the original Software to IHS.
3. SUPPORT SERVICES
IHS will for the term of this Agreement:
o make reasonable efforts to supply corrections to problems reported by
Customer which IHS diagnoses as defects in a currently supported release of
the Software;
o provide Customer with New Releases, which IHS elects to make available to
its Customer base generally. The basic hours for the provision of these
services will be in accordance with the operations schedule of the support
center, but not less than 9:00 am to 5:00 p.m. Eastern Time Monday to Friday,
excluding IHS published holidays.
Customer understands and agrees that Customer must install all solutions,
corrections and New Releases supplied by IHS within 90 days in accordance with
IHS' installation instructions. Customer recognizes that Customer's failure to
install such solutions, corrections and New Releases may render the Software
unusable or nonconforming with its associated documentation and Customer agrees
to assume all risks arising therefrom and to release IHS from all liability in
respect thereof.
Any attempt by Customer to alter the Software without IHS' written direction
will be at Customer's sole risk and expense and in no event will IHS have any
obligation to support or maintain any alteration which is not distributed by IHS
to its general Customer base and made part of IHS' standard Software.
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IHS' Support services do not include:
o services which in IHS' opinion are required due to accident, neglect,
misuse, failure of electrical power, air conditioning or humidity control on
the customer premises, or failure of storage media not furnished by IHS;
o services required due to installation or failure of a Software or Hardware
component not actively supported under an IHS Support or License agreement.
o services required due to attempts by other than IHS personnel to repair,
maintain, modify or move the Software;
o the provision of consumable operating supplies or accessories;
o the training of new personnel due to staff turnover;
o the training of personnel that for any reason were not included in the
original implementation training or subsequent training provided by IHS.
Customer's obligations:
o Customer must promptly report any identified problem or error to IHS by
telephone to its designated Support contact point, describing it in
sufficient detail for IHS to be able to recreate the problem or error, and
indicating whether or not it is an Emergency Problem.
o Customer agrees to allow IHS reasonable access to the Premises, Software,
and Hardware and the reasonable use of any equipment or media necessary for
IHS to perform its Support obligations hereunder.
4. PROPRIETARY PROTECTION OF CUSTOMER DATA
Customer agrees to allow data that it makes available to IHS to be retained and
used in data analyses that IHS may perform from time to time. IHS agrees to use
such Customer data as may be in its possession only in accordance with all
applicable Federal and State laws and industry specific guidelines, and to
protect it with the same effort it uses to protect its own proprietary data.
Further, IHS agrees not to publish to any third party any data or results of the
analysis of Customer data that is attributable to Customer without the expressed
consent of Customer.
5. PROPRIETARY PROTECTION OF THE SOFTWARE
Customer acknowledges and agrees that the Software consists of proprietary,
unpublished products of IHS and/or its suppliers, protected under U.S. copyright
law and trade secret laws of general applicability. Customer further
acknowledges and agrees that all right, title, and interest in and to the
Software are and shall remain with IHS and/or its suppliers. This Agreement does
not convey to Customer an interest in or to the Software, but only a limited
right of use revocable in accordance with the terms of this Agreement.
Customer may not at any time disclose or disseminate the Software to any person
who does not need to obtain access thereto consistent with Customer's rights
under this Agreement. Under no circumstances may Customer attempt to decompile
or reverse engineer the Software or modify the Software. Under no circumstances
may Customer disclose or disseminate the Software to any competitor of IHS.
Customer will use Customer's best efforts to ensure that all Customer's
personnel and all other persons with authorized access to the Software shall
protect it against improper use, dissemination or disclosure. Customer
acknowledges that, in the event of Customer's breach of any of the foregoing
provisions, IHS will not have an adequate remedy in money or damages. IHS shall
therefore be entitled to obtain an injunction against such breach from any court
of competent jurisdiction immediately upon request. IHS' right to obtain
injunctive relief shall not limit its right to seek further remedies. Customer's
obligations hereunder shall remain in effect for as long as Customer continues
to possess or use the Software or any trade secrets derived therefrom.
6. TERM
This Agreement shall become effective upon execution by Customer and acceptance
and approval by IHS, and shall continue until terminated. Either party may
terminate this Agreement upon written notice to the other party not less than 90
days in advance of the desired termination date. IHS may also terminate this
Agreement if Customer petitions for relief under the Bankruptcy Code or if any
involuntary petition thereunder is filed against Customer and is not dismissed
within sixty (60) days, or if a receiver is appointed for Customer's business,
or if Customer makes an assignment for the benefit of creditors. Upon
termination for whatever reason, Customer agrees to return to IHS the Software
and all copies and portions thereof in Customer's possession, or certify in a
manner satisfactory to IHS the destruction and cessation of use of the Software.
If Customer defaults in payment of any sum due under this Agreement, IHS may
notify Customer in writing of the default. Customer will have thirty (30) days
from delivery of the written notice to remedy the default, failing which, IHS
shall have the immediate right to terminate this Agreement.
If either party commits a material breach of its obligations under this
Agreement, other than default in payment, the other party may notify the
defaulting party in writing of the breach. The defaulting party shall have sixty
(60) days to remedy the breach, failing which the other party shall have the
immediate right to terminate this Agreement.
Annual License and Maintenance services will begin upon the shipment date of the
Software and will continue for an initial term of twelve (12) months. They shall
automatically continue thereafter for further periods of twelve (12) months
unless or until this Service is terminated by Customer or IHS on not less than
Thirty (30) days' written notice before the expiration of the initial term or
any subsequent twelve (12) month period.
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7. FEES, PAYMENT AND TAXES
The total contract price is in consideration of the license granted and the
services provided under this Agreement. Customer agrees to pay charges pursuant
to this Agreement issued in accordance with the pricing Schedules as may be
accepted by both parties and appended to this Agreement. Unless otherwise
indicated in a Schedule, payment shall be due thirty (30) days from the invoice
date.
The travel, living and accommodation costs incurred by IHS in connection with
Consulting and Training services shall be paid by Customer within thirty (30)
days of the date of invoice. Charges of one and one half per cent (1.5%) per
month or the highest amount allowed by law, whichever is less, prorated on a
daily basis will be applied to late payments.
Customer is solely responsible for payment of any taxes (including sales or use
taxes and intangible taxes) resulting from Customer's acceptance and use of
products and services. Customer agrees to hold IHS harmless from all claims and
liability arising from Customer's failure to report or pay such taxes.
Customer shall pay to IHS the Annual Maintenance Fee for the services specified
herein. On January 1 of each year, IHS may adjust the Annual Maintenance Fee by
an amount not to exceed ten percent (10%) of the previous year's fee. Payment of
the first Annual Maintenance Fee must be made within ninety (90) days of
Activation of the Software, unless it has been included in the original license
agreement. Subsequent Annual Maintenance Fees are due and payable on this Annual
Renewal Date. In the event of termination of this agreement under Paragraph 6,
no prorated adjustment shall be made in annual license fees.
Customer must make payment of all invoices to IHS within thirty (30) days of the
date of the invoice. Charges of one and one half percent (1.5%) per month or the
highest amount allowed by law, whichever is less, prorated on a daily basis will
be applied to late payments.
8. LIMITED WARRANTY
IHS warrants, for Customer's benefit alone, that the Software Media in which the
Software is embedded shall for a period of ninety (90) (referred to as "the
Warranty Period") be free from defects in material and workmanship.
IHS MAKES AND CUSTOMER RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE ARE
EXPRESSLY EXCLUDED ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IHS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS
UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN
IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL IHS
BE LIABLE FOR DIRECT DAMAGES IN EXCESS OF AN AGGREGATE OF ALL SUMS PAID BY
CUSTOMER TO IHS UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE (12) MONTHS. IN
PARTICULAR IHS SHALL HAVE NO LIABILITY FOR ANY PROGRAMS OR DATA STORED IN OR
USED WITH THE SOFTWARE, INCLUDING THE COSTS OF RECOVERING SUCH PROGRAMS OR DATA.
IHS will indemnify and hold Customer harmless from liability against any claim,
demand or action alleging that the Software infringes any third-party rights in
the United States in respect of copyright, trade secret or patent. This
indemnification is conditional upon Customer's fully cooperating with IHS in the
defense or settlement of such actions, giving IHS prompt written notice of any
claim, demand or action for which indemnification is sought, and surrendering to
IHS the right to defend such claim.
9. FORCE MAJEURE
Neither party shall be liable for any failure to perform or delay in the
performance of its obligations hereunder caused by circumstances beyond its
reasonable control including, but not limited to, acts of God, government
requirement, fires, strikes, floods, epidemics, riots, power shortages, delays
in transportation, inability to obtain necessary labor, materials, or
components, or any act, neglect or default of the other party.
10. GOVERNING LAW
This Agreement shall be construed and governed in accordance with the laws of
the State of Virginia. Any and all proceedings relating to the subject matter
hereof shall be maintained in the courts of the State of Virginia which courts
shall have exclusive jurisdiction for such purpose.
11. COST OF LITIGATION
If any action is brought by either party to this Agreement against the other
party regarding the subject matter hereof, the prevailing party shall be
entitled to recover, in addition to any other relief granted, reasonable
attorney fees and expenses of litigation.
12. SEVERABILITY
Should any court of competent jurisdiction declare any term of this Agreement
void or unenforceable, such declaration shall have no effect on the remaining
terms hereof.
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13. NO WAIVER
The failure of either party to enforce any rights granted hereunder or to take
action against the other party in the event of any breach hereunder shall not be
deemed a waiver by that party as to subsequent enforcement of rights or
subsequent actions in the event of future breaches.
14. GENERAL
Accepted and approved by:
By:...................................................
Name
Printed:..............................................
Title:................................................
Date:.................................................
Mailing Address:
......................................................
......................................................
......................................................
This Agreement represents the entire agreement concerning the Software between
Customer and IHS and it supersedes any prior proposals, representations or
understandings between Customer and IHS. In the event of conflict between the
terms of this Agreement and terms of preprinted customer purchase orders, the
terms of this Agreement shall apply. No modification of this Agreement shall be
binding unless it is in writing and is signed by an authorized representative of
both parties.
Accepted and Approved by IHS OF VIRGINIA, INC.
By:...................................................
Name
Printed:..............................................
Title:................................................
Date:.................................................
Mailing Address:
IHS OF VIRGINIA, INC.
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Schedule S
The parties, except as explicitly stated herein, intend no change to the
Agreement.
For Customer:
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Customer:
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For IHS:
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................................... (date).................
IHS OF VIRGINIA, INC.
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